SADASHIV GOVIND SAMANT Vs. SHEDURAM SUKHDEV

JUDGEMENT

(1.) NOW , the first thing to be considered is: Was there the procuring and applying of process of the Court? At the commencement o! the hearing Mr. Jape, learned counsel for the defendant, raised the contention that the plaint did not disclose any cause of action because all that the plaint showed, so it was said, was that the defendant had procured the order of attachment and that did not afforda complete cause of action for a suit for damages for wrongful attachment. It was also urged that it had been held by this Court that merely showing a warrant of attachment to the defendant against whom an order of attachment before judgment had been passed would not amount to enforcing the process (sic) the Court. The suggestion was that it was (sic) cumbent on the plaintiff to aver facts necessary to show that there was actual attachment(sic) seizure of the goods of the plaintiff. The argument proceeded that taking the facts set out (sic) the plaint as correct, they did not amount to complete cause of action for the nature of the suit before me and the suit must, therefore, (sic) dismissed 'in limine'. I was asked to try that question as a preliminary issue. I would have done so if the decision had not necessitated determination of any facts on evidence to be adduced before me. The plaintiff had, however, in his plaint alleged a number of facts which were denied by the defendant and I did not think it desirable to deal at that stage with the plea of demurrer particularly in view of those allegations made in the plaint and being of the opinion that this was not a case in which it would be convenient to try that question as a preliminary issue.

(2.) NOW , it is well established law that a suit lies for abuse of the ordinary civil process. As a general rule the law allows a person to employ its process to enforce his rights and does not subject him to any liability on the ground that he has brought the suit maliciously and without reasonable or probable cause, on allegations of fact which may ultimately be proved to be false. If the original suit is protected, then there is considerable scope for saying that the proceedings in the suit should also be protected. Nevertheless there are certain civil proceedings involving interference with the liberty or property of a person or which affect or are likely to affect his reputation in case of which the law recognises the cause of action where it is alleged that such proceedings were motivated by malice and were undertaken without reasonable and probable cause. An outstanding and not uncommon instance of this is an action for malicious procuring and levying the process of the Court through the instrumentality of an order of attachment before Judgment. Another instance is of an action for damages for malicious prosecution. It was said in the case before me by Mr. Mody, learned counsel for the plaintiff, that principles of law to be applied to the present case are the same as those applied by Courts in a case of the latter type. Now, it is true that it is generally assumed that in a case for maliciously procuring an attachment before judgment the plaintiff has to allege and prove a case similar 'mutatis mutandis' to a case for malicious prosecution. The essential requirements of such action are that malice and absence of reasonable and probable cause must be shown. It differs, however, from malicious prosecution in that the gist of it seems to be special damage. Where these elements are present the action must succeed. It must, be shown by the plaintiff that the defendant wrongfully and maliciously procured an orderof attachment before judgment and the process of the Court was applied in pursuance of the order. He must show that the order was obtained Irregularly. AS a general rule he must get the order set aside and then proceed by way of a suit to establish that there was an abuse of process of civil law. I have to examine whether the evidence adduced before me establishes the several matters before enumerated. Although as I have already stated the first thing to be considered by me is whether there was a procuring of the order and process of Court by the defendant, I think it Will be more convenient to discuss and dispose of the other questions that will also have to be determined by me in this suit.

(3.) NOW , with reference to malice. Malice necessary to be established is not really malice in law such as may be assumed from certain actsand which is known as malice in law, but malice in fact, 'malus animus' indicating that the defendant was actuated by spite against the plaintiff or had indirect or improper motives. At the same time it is now settled by authority that the Court is entitled to take into account circumstances on which it may properly arrive at a conclusion that there is in law absence of reasonable or probable cause, if those circumstances by themselves are indicative of malice. AS I have already observed while discussing the evidence before me that it was at the instance of the plaintiff that the fine of Rs. 401 had been imposed upon the defendant by the Association at Dhulia. Moreover, the plaintiff had stopped all further dealings with the defendant and was firm in his attitude that he would not pay any amount to the defendant unless the disputes relating to adulteration of goods was settled between the parties. In these circumstances and also from the rest of the circumstances of the case and the evidence before me I am satisfied that in the matter of these proceedings the defendant was actuated by ill -will and spite against the plaintiff. That to my mind is sufficient to dispose of the question of malice.